7.  The applicant was born in 1964 and lives in Pulheim.
8.  The applicant is the father of a daughter born out of wedlock in 1995. The applicant and the mother of the child separated in August 1998. Their relationship had lasted five years. Until January 2001, the daughter lived with the applicant, whereas the mother had moved to another flat which was located in the same building. As the parents did not make a joint custody declaration (gemeinsame Sorgerechtserklärung), the mother obtained sole custody (alleinige Personensorge) pursuant to Article 1626a § 2 of the German Civil Code (Bürgerliches Gesetzbuch, see Relevant domestic law and practice below).
9.  In January 2001, the child moved to the mother’s flat. Subsequently, the parents started to argue about the applicant’s contact with the child. In June 2001 they reached an agreement with the assistance of the Cologne-Nippes Youth Welfare Office (Jugendamt Köln-Nippes), according to which the applicant would have contact with the child every Wednesday afternoon until Thursday morning, every Sunday from 10 a.m. to Monday morning and half of each holiday, amounting in total to approximately four months per year. In 2001, the applicant applied for a joint custody order, as the mother was unwilling to agree on a joint custody declaration, although otherwise both parents were cooperative and on good terms.
10.  On 18 June 2003, the Cologne District Court (Amtsgericht Köln) dismissed the applicant’s application. It found that there was no basis for a joint custody order. Under German law, joint custody for parents of children born out of wedlock could only be obtained through a joint declaration, marriage or a court order under Article 1672 § 1 of the Civil Code, the latter requiring the consent of the other parent. The Cologne District Court considered Article 1626a of the Civil Code to be constitutional and referred to a leading judgment of the Federal Constitutional Court (Bundesverfassungsgericht) of 29 January 2003 (see §§ 18-21, below). Having regard to the fact that the pertinent legal provisions did not allow for a different decision, the District Court did not consider it necessary to hear the concerned parties in person.
11.  The applicant appealed and on 2 October 2003 the Cologne Court of Appeal (Oberlandesgericht Köln) dismissed the appeal. It reasoned that, as the applicant and the mother were unmarried, the applicant’s participation in the exercise of custody was only possible in accordance with Article 1626a of the Civil Code. The applicant and the mother had, however, not submitted the required joint custody declaration. In its judgment of 29 January 2003, the Federal Constitutional Court had found that Article 1626a of the Civil Code was constitutional with regard to the situation of parents of children born out of wedlock who had separated after 1 July 1998. The Cologne Court of Appeal noted that the applicant and the mother of the child had separated in August 1998. Thus, they had had a period of one and a half months before they separated in which they could have made a joint custody declaration. The Cologne Court of Appeal further noted that the new legislation, which had entered into force on 1 July 1998, had received public attention for a considerable period. Unmarried parents might have been expected therefore to have shown an interest in the matter and to have noticed the new legislation.
12.  On 15 December 2003 the Federal Constitutional Court, referring to the pertinent provisions of its Rules of Procedure, declined to consider the applicant’s constitutional complaint, without giving further reasons.